World Bank tribunal rules against Pakistan in Reko Diq project case. An arbitration tribunal of the World Bank’s International Centre for Settlement of Investment Disputes (ICSID) awarded about $5.9billion in damages to TCC in arbitration claims it filed against Pakistan following the denial of a mining lease for the Reko Diq project in Pakistan in 2011. The ICSID awarded a $4.08billion penalty and $1.87billion in interest. The case between the Pakistani government and the international company continued for approximately seven years. Reko Diq mine is well known because of its huge gold and copper reserves and is considered to have the world’s fifth largest gold deposit. Reko Diq, which means sandy peak in the Balochi language is a small town in Chagai district in Balochistan. It is located in a desert area, 70 kilometer north-west of Naukundi, close to the border with Iran and Afghanistan. The area is located in the Tethyan belt that stretches all the way from Turkey and Iran into Pakistan. Tethyan board chair William Hayes said the company said it would continue protecting its commercial and legal interests until the dispute was over.
Prime Minister Imran Khan ordered formation of a commission to investigate as to how Pakistan ended up in this dilemma. The commission will also investigate which components are accountable for making Pakistan suffer such a loss and what lessons are learnt so that mistakes made are not repeated in the future. Earlier Pakistan had taken the appeal before the tribunal that the agreement /mining licence for the Reko Diq project was procured through corrupt means and therefore, the claimant (TCC) could not ask for damages. In 2013, the Supreme Court had also held the contract between Balochistan and the TCC as illegal. Pakistan has hailed a statement made by William Hayes, the chairman of the Board of Directors of the TCC, in which he stated willingness to work towards a negotiated settlement. Mr Hayes stated that the company remained willing to discuss the probability for a negotiated settlement with Pakistan, but would continue to protect their commercial interests and legal rights until the final result of this dispute. The government of Pakistan welcomed the approach to work towards a mutually beneficial solution that works for both sides. Pakistan was a responsible state and its government took its international legal obligations sincerely. The government of Pakistan, in consultation with the provincial government of Balochistan, would take a position on the future course of action after carefully considering all aspects of the matter. Currently Pakistan reserved its right to pursue any and all legal remedies available to it under ICSID regime, international law and all other relevant laws to safeguard its interests. The mineral resources in Reko Diq were collective resource of the people of Balochistan and Pakistan. Pakistan was sincere for development of this resource to safeguard that development needs of some of the poorest people were tackled. Pakistan also urged the international tribunal to consider the significance of its directives and the influence on the development and poverty mitigation.
It had been well known that the judgment of the tribunal in the Reko Diq case would go against Pakistan particularly when in March 2017, the presiding tribunal determined that Pakistan had violated several clauses of its bilateral investment treaty with Australia by denying a mining lease to the consortium that had conducted the exploratory work in the area.
The company invested five years and a reported $220 million before submitting a feasibility study and an expression of interest to commence mining operations back in 2011. The company was denied a mining lease after it had made the investment to discover the resource and prepared a commercial feasibility study of its extraction It gave a feeling that it had put in all the strenuous work, merely to be dropped out of the mining operation.
Balochistan High Court heard a case starting in 2007 involving complaints of misdeeds in the case. The high court defended the grant to the Tethyan Copper Company. In 2013, the Supreme Court took up the matter, and in quick hearings, cancelled the lease. The case had already landed in international arbitration, which began in 2012, when the Balochistan government rejected the TCC’s application to convert its exploration licence into a mining licence. The TCC asserted his was its right in the agreement under which the exploration work was carried out. An out-of-court settlement would have been possible, and the deal could have been saved as it lay within the executive’s sphere. In the past, the Steel Mills case stopped the privatization programme, leaving the country accused with SOEs with billions of rupees in accumulated losses. In this regard $5.9billion judgment has to be controlled.
Top courts intervening in political and executive affairs is not a new practice in Pakistan; it dates back to the Maulvi Tameezuddin Case in 1950s when the country’s top court had confirmed the dismissal of the Constituent Assembly in a verdict considered a hit to democratic standards. The heavy penalty of the contract payment is one of the biggest in the ICSID history. A verdict by former top judge Iftikhar Muhammad Chaudhry has charged the country dear. Before that, in August 2017, the same ICSID tribunal had issued $800 million award against Pakistan in a case filed by Turkish company Karkey.